Lord Adonis: My Lords, the National College for School Leadership, which was established five years ago, provides specific training in the areas mentioned by the noble Baroness, and part of the funding for the roll-out of extended schools is to provide training.

Lord Adonis: My Lords, there are a number of programmes in this area. For example, the reading recovery programme, as the noble Lord will know, provides for very small group tuition—in many cases, one-to-one tuition—for pupils who are falling behind in the early years of primary school. In respect of secondary schools, we have made provision for literacy progress units, for example, which are specifically designed for use with small groups of six to seven pupils who are falling behind in literacy. With the substantial increase in the number of teachers and teaching assistants in our schools, it is now possible to give much more individualised attention to pupils than was the case in the past.

Lord Harrison: My Lords, given the sharp 61 per cent rise in the cost of burials and cremations, is my noble friend satisfied that the funeral services industry is competitive and transparent in the prices that it charges and in itemising the services that it makes under them? Perhaps I may refer my noble friend to the funeral service payments paid under the Social Fund to those in the lower income groups? Is he satisfied that those payments have kept pace with the increasing price of funerals over the past five years?

Lord Sainsbury of Turville: My Lords, I think that my noble friend is referring to a report mentioned in The Times on 18 January, which suggested that there was a 61 per cent increase between 2000 and today in the cost of a funeral. That report has not been published, so it is not possible to comment on it in detail. However, if there is any sense of anti-competitive behaviour in relation to competition law that is something for the Office of Fair Trading, whose attention should be drawn to it. Since its report, the OFT has done much work to improve issues such as transparency. As for funeral payments, the amount allowable covers the necessary costs of specified items, including burial or cremation fees, plus up to £700 for all other funeral expenses. So, to some extent, it is indexed to actual costs.

Baroness Sharples: My Lords, does the Minister agree that it is a good idea to pay some time in advance? Perhaps one would get a better deal that way

Baroness Royall of Blaisdon: My Lords, I fully agree with my noble friend. I am sure that my colleagues in government are working with the Commonwealth and that the EU itself will be doing so to ensure that the Government of Kenya are fully apprised of our dismay at the unprecedented flagrant attack on the freedom of press in that country.

Baroness Ashton of Upholland: My Lords, in moving the amendment I shall speak also to Amendments Nos. 2 and 62.
	These amendments extend Clause 1 to breaches of statutory duty, but will apply only where those statutory duties give rise to civil liability, and where liability depends on the defendant having failed to meet a standard of care. They address concerns expressed in Grand Committee by the noble Lords, Lord Hunt of Wirral and Lord Goodhart, that if the clause applied only to claims of negligence it might create uncertainty about the approach to be taken in claims for breach of statutory duties to take reasonable care, such as those owed under the Occupiers Liability Acts of 1957 and 1984.
	As I indicated in Committee, extending the approach in Clause 1 to statutory duties across the board might change the law and cause confusion by raising the possibility of it being argued for in cases to which it might not be relevant. I also referred to the difficulties likely to be involved in creating a definitive closed list of statutory duties to which the clause would apply. It is almost inevitable that something could be missed. In addition, a closed list on the face of the Bill could not cover new statutory duties created after the Bill receives Royal Assent to which the approach in Clause 1 might be relevant. The amendments avoid such problems. They reflect the current law, and ensure that all relevant cases, but only relevant cases, are covered—those which involve consideration of a standard of care.
	It may be helpful if I give some examples. As well as cases arising under the two occupiers' liability Acts, the amendment will be relevant, for example, to the duty of care owed by a landlord in respect of repair under section 4 of the Defective Premises Act 1972, and the duty of a highway authority to keep the highway in repair under the Highways Act 1980, for which there is no special defence in Section 58 that the authority took reasonable care to ensure that the highway was not in a dangerous condition.
	It will not extend to cases where there is an absolute statutory duty involving strict liability in the event of failure, for example the duty to build dwellings properly in Section 1 of the Defective Premises Act 1972. Nor will it extend to cases that concern what is reasonable in any context other than carelessness, such as the duty of a landlord, under the Landlord and Tenant Act 1988, to consent to a proposed transaction unless it is reasonable not to consent. Nor will it extend to cases where infringement of a right is actionable as a breach of statutory duty that does not depend on carelessness, such as the moral rights conferred upon an author or director under the Copyright, Designs and Patents Act 1988. The amendments ensure that only relevant statutory duties are caught; I am extremely grateful to noble Lords for raising this issue in Grand Committee. I believe I have fulfilled my obligation to your noble Lordships in bringing forward these amendments to address the concerns raised. I beg to move.

Lord Hunt of Wirral: My Lords, I warmly welcome these amendments. This will come as no surprise to the noble Baroness; as she has already indicated, amendments very close to these were in my name in Committee. I am delighted that the Government has listened. I believe that these amendments both strengthen and clarify Clause 1, better defining its intended remit. It has been a great pleasure to work with the Minister. I say "work with" because it has never been "against". We are united in our resolve and objective for the Compensation Bill. The process of seeing the Bill safely into port has been greatly enhanced by the Minister's open and consensual approach. We have not, of course, agreed on every dot and comma of the Bill, but the Minister and her outstandingly good officials have listened carefully throughout to the points raised and always responded constructively.
	I would also add—though it may not be quite so palatable—that it is a pleasure to find a Minister who changes her mind. In Committee, the noble Baroness said:
	"I cannot add it in because I believe that it would do the one thing that I am keen not to do, which is to cause confusion".—[Official Report, 15/12/05; col. GC 192]
	I very much welcome the fact that I have had the opportunity to satisfy the Minister that the amendment brings clarity, not confusion. That is why I think the Minister is an example to her colleagues; every Member of the Opposition and every Back-Bencher wishes that Ministers listened as much as the noble Baroness has done. It has also been a pleasure to listen to the interventions of the noble Lord, Lord Goodhart, and those of other colleagues and noble friends in Committee, including the noble Lords, Lord Greenway and Lord Lucas, the noble Viscount, Lord Eccles, and the noble Earl, Lord Erroll.
	As so often in the past, Grand Committee procedure has brought out the very best in our system and those who work within it. We have already improved the Bill considerably. I pay tribute to the Clerks for producing a Committee Hansard, which brings together in one volume all five stages of the Grand Committee. That has been remarkably useful and is, I hope, a precedent for what may happen in the future. Finally, I believe the Government's amendments succeed in addressing most of the substantive points raised in Committee by those of us on the Opposition Benches. There will still be some disagreement, but we really are making progress.

Lord Goodhart: My Lords, I endorse everything the noble Lord, Lord Hunt of Wirral, has said. I think the amendments introduced by the Government—not only those in this group—have enormously improved the Bill, which I think is now, subject to one or two quibbles, fit for purpose and in a state to go to the other place. I am also very grateful to the Minister for ensuring that we were able to see the draft model rules before today. I have not had a chance to go through them in detail, but then they are not really a matter for your noble Lordships' House. But we do at least know that the model rules have been prepared and that there is therefore a framework that can be used as a basis for the rules that will be made by the regulator. Certainly we are entirely happy with the amendments in this group.

Lord Goodhart: My Lords, this is a serious point of principle, and I think this is the only occasion on which I shall be moving something that I would regard as a point of principle. It is a fundamental matter—that is, whether Clause 1 should remain part of the Bill.
	In Grand Committee, and in Second Reading before that, I was critical of Clause 1. The Government say that Clause 1 merely restates the existing law. They say, and I agree, that the present state of the law is satisfactory. In a strong, commonsense judgment by the noble and learned Lord, Lord Hoffmann, in the case of Tomlinson v Congleton Borough Council, the Appellate Committee of your Lordships' House ruled that the borough council did not have to fence off a pond in a park in order to prevent a stupid young man diving into shallow water and breaking his neck.
	There are, of course, reports of cases where damages have been awarded to people who are the authors of their own misfortunes. It is difficult to find authentic texts for these judgments and I suspect that some of them are urban myths. Some of them are reported; some were decided before the law was clarified in the Tomlinson case; and some are simply bad decisions, which are unavoidable in any legal system.
	At best, Clause 1 is unnecessary as it merely reflects the existing law, but I believe that in fact Clause 1 is worse than that—it is positively damaging. It tries, in effect, to crystallise the existing law—something that I would expect any text book on the law of negligence to take several pages to do. The trouble is that an Act of Parliament, once enacted, is an Act of Parliament, and the courts will have to interpret Clause 1, or Section 1, as it will then be. The court will have to consider what a desirable activity is. To what extent will the fact that the activity is desirable mean that standards of care are reduced? With Clause 1, I fear that we will have a good many years of satellite litigation over the interpretation, which will lead to restrictions on the ability of the common law to develop flexibly and in line with the needs of the day.
	Clause 1 could be interpreted so as to restrict what I think most of us would regard as legitimate claims for damages. Let us take, for example, rock climbing, which most of us would regard as something adventurous and as a desirable activity for the young people who want to undertake it. It carries an inherent risk. You may, for instance, get an unpredictable rockfall or an accident that is due to nobody's carelessness. If I was a parent whose child was seriously injured in a climbing accident on a climbing course, I would be appalled if my child could not get damages if the accident was due to their being sent out with a frayed rope or under the charge of an untrained and incompetent leader. The fact that the leader may be a volunteer is no excuse for their lacking the necessary skill. It should be no defence for organisers to say, "We couldn't afford to pay for trained leaders". Maybe Clause 1 says that that is not a defence—I certainly hope that it is not—but maybe the clause will be interpreted by the court to mean that it is a defence.
	I believe that Clause 1 is useless and potentially damaging. That view is shared by the House of Commons Select Committee on Constitutional Affairs, which concluded, in paragraph 67 of its report:
	"We agree with the majority of the evidence that we have received that clause 1 to the Compensation Bill . . . is unnecessary. We have concluded that it should not be in the Bill. While it is undoubtedly well meaning, it satisfies neither those who wish to reduce risk aversion in society, nor those requiring legal certainty. It is impossible to encapsulate the law of negligence in a single sentence . . . If clause 1 were implemented, it would undoubtedly, at least in the short term, lead to an increase in costly satellite litigation to define what is a 'desirable activity'. Moreover, the wide breadth of that term (or any alternative proposed such as 'social value' or 'utility') could have unforeseen consequences, since while the Government states that it is not intended to change the law, it is likely that interested parties will seek to rely upon the clause before the courts in order to improve their shield against liability. This could result in possibly inconsistent decisions where judges try to refine further the concept of 'desirable activity'".
	I have also received a briefing from the Association of Personal Injury Lawyers, which is critical of Clause 1. You may say of that organisation, "They would say that, wouldn't they?" But I was particularly struck by one point that it makes, which seems to me to be obvious common sense. If schools, not-for-profit organisations or other promoters of desirable activities have reduced standards of care, parents are less likely to entrust their children to them and access to activities will be reduced. What will the reaction be if a child is injured as a result of the incompetence of a teacher and that child is refused damages because he or she was taking part in a "desirable activity"?
	It is widely recognised that the problem is not the law but the perception of the law. It is, of course, easier to change the law than to change the perception, but doing so does not deal with the problem. There is a real risk—and it is a risk to which I am averse—that the courts could regard themselves as bound to impose lower standards of care in cases of desirable activities as a result of Clause 1. I believe that the first time the claim of a child injured by the carelessness of a group leader is refused because of Clause 1, there will be a far bigger outcry than we get from the other side of the argument now. I beg to move.

Lord Lucas: My Lords, I entirely disagree with the amendment. Clause 1 is the heart of the Bill and the part in which I have most interest.
	The noble Lord, Lord Goodhart, was right when he said that the Bill is largely in line with the present law. Grand Committee convinced me of that. The importance of the clause is not that it changes the law but that it prevents further change to the law. Someone who is responsible for planning the provision of an activity—often looking forward many years—can say, "What I am doing fits with the law at the moment. I can be sure that the perception of the drift of liability and responsibility away from the citizen towards the providers of activities is not going to apply further in my case; and therefore I can reasonably say that this is an activity in which I wish to invest and in many cases which I wish to provide my livelihood over many years.". This is a thoroughly desirable clause.
	I would like to declare an interest. I own a wood in Kent to which I allow the public access. I am conscious that people using this wood—which contains slippery and steep slopes and remnants of an old garden created by former Lord Chief Justice Jowett—could easily injure themselves. They could fall down some of the concrete constructions in the wood or some of the steep slopes. There are the ordinary dangers of access to a wood which is full of dead standing timber—as is required these days—left there to amuse the owls, woodpeckers and such. But at some stage this will fall down and if someone is underneath it will squash them. If I feel that this is something for which I am likely to find myself liable in due course—or that the law might drift in that direction when that unhappy event happens and I would be the one caught by that drift—I will let the wood go back to eight-foot brambles which is what it was when I bought it. And there will be no question of public access without severe lacerations—which will probably discourage anyone attempting it.
	It is common sense that people should be allowed to take ordinary risks and judge for themselves the ordinary risks attendant on rock climbing. As the noble Lord said, people know that a chunk of mountain may fall off higher up, knock you on the head and do you severe injury even if you have a decent rope, a decent helmet and a proper instructor. These things happen.
	It is not that we cannot deal with the current state of the law which is broadly fair. Nobody wants to find that the law has drifted while they were not looking and that they suddenly find themselves liable—or that, in looking ahead in the provision of an activity, it is likely to drift. That results in the gradual withdrawal of facilities and people taking action to avoid the possibility of the law changing to their disadvantage.
	It is entirely right that statute should state that there is a reasonable balance and that is where we want to keep it. We do not want the uncertainties of the way in which common law might develop under pressure from the Daily Mail and Daily Express.

Viscount Eccles: My Lords, I rise to dissent from the opinion expressed by my noble friend Lord Lucas and to support the amendment of the noble Lord, Lord Goodhart. I also play close attention to the comments of the noble and learned Lord, Lord Ackner.
	Clause 1 was discussed for more than seven hours in Grand Committee, which may give some indication of the way in which it might be discussed in the courts in the land in future—at unreasonable expense, I suggest. The reason for the length of the debate was partly the question of what the clause meant and partly an attempt to change and interpret the clause to provide legal cover for the promotion of desirable activities. Thus desirable activities would take place with greater frequency. This discussion ended in some frustration, because all the attempts to find a legal way forward were unavailing. As the Minister said to us at the time, the Bill was trying not to amend the law but to take away doubt.
	However, as the noble Lord, Lord Goodhart, said at the time—he has reminded us today—the clause might have the effect of introducing more doubt rather than removing it. At that point, several noble Lords, including me, began to conclude that Clause 1 was unhelpful.
	Without reiterating all the arguments put by the noble Lord, Lord Goodhart, I say that it seems unwise to agree a clause which would widely be expected to achieve something of legal significance when it will not do so. It is impossible to see that even clarification will be achieved. The courts will be better placed if they continue as they do today. If the clause is aimed simply at achieving some psychological effect, some shift in somebody's perception somewhere, it will not assist the courts. This clause does nothing positive and might be a hindrance to the sensible development of the law on negligence. It should not stand part.

The Earl of Erroll: My Lords, I ought to declare a slight interest as an office-bearer in the All-Party Parliamentary Group on Risk and Adventure in Society. We have had some useful discussions with the Minister between Committee and Report. We realised that, although we would like to strengthen Clause 1—I shall explain why in a moment—it would probably not be possible considering the weight of the vested interests in the legal beagles in this House, who would make sure that we failed. Therefore, all we could really hope for was a Statement from the Government on some points with which we have serious issue and where the courts have been drifting in the wrong direction. I thank the Minister for the great help which she gave us.
	I disagree entirely with the noble Lord, Lord Goodhart. I was interested by the comments of the noble and learned Lord, Lord Ackner: it is broke and it does need fixing. He convinced me that we should change "may" to "should". Unfortunately, I do not think that we would get that amendment through. We will leave it for another place to put in some of these amendments, because I know that the issue will be spoken to there.
	Some very silly judgments have occurred and a lot of publicity has been given to them. The law is misunderstood. If it is as the noble Lord, Lord Goodhart, said, it is widely misunderstood outside. It is not true that the law is understood and that it is okay.
	The lawyers have a vested interest in litigation and, even if no litigation is being entered into, in advising groups at huge expense on what they can and cannot do—it is usually "cannot"—producing many reams of paper in the process. School trips are already being cancelled. I know of several school trips to foreign parts and in this country which have been cancelled. My wife is a school governor. Her school has had to cancel trips on the advice of people in the school. They do not want to take the risk. The perception out there is that there is a risk. We know that these things are falling, and whatever statistics are produced on the other side, I am afraid that there are counter-statistics. I do not have those with me, but I am quite sure they will be produced in another place in more detail. Common law can still evolve; all we are trying to do is put a stake in the ground and say, "We think that the courts, as the legislators, have been drifting in the wrong direction. Please look at which direction you are going in, and evolve the common law in a slightly different direction, strengthening the power of the risk takers in society to be able to go out and take risks".
	I had thought about, and we discussed, tabling amendments on social utility along Australian lines, but we were advised that interpreting that in the courts could cause problems. There is a concept abroad of 100 per cent contributory negligence. Someone asked quite logically how you could be 100 per cent contributory. You can be 99.9999 recurring per cent contributory, but you cannot be 100 per cent contributory; that is logically or terminologically impossible. So that would fail. But the principle is still the same.
	At the moment, the courts ascribe very little contributory negligence to people who have done some very stupid things. Parents present with their children have sometimes overruled instructors on the ground, and have been responsible for their children's serious injury or even death, despite the instructors trying to prevent them from doing so. When you are in charge of a group of several children and a parent insists on taking their child off to do something which you have said no to, how do you stop that? You would be guilty of an assault if you physically restrained them, so what do you physically do? One has to be realistic about this.
	The courts have not been very kind to groups such as the Scouts and other voluntary groups who take people out. I was an inveterate risk-taker in my youth, and never thought that I would be alive today. When someone tried to sell me a pension, I explained that I would be dead by the millennium, so there was very little point in my having one. I used to climb rocks. I have led climbs that I should not have undertaken because they were slightly beyond me. Half way up, I realised that I would be dead if I did not reach the next handhold, because I had a 60-foot fall below me and I had not put in proper protection. That is how you learn. You learn to control your twitching muscles, and you learn to go for it. For some strange reason, I have survived. At the end of the day, it was my choice. I am afraid that one does such things but, in general, most people survive; that is the most remarkable thing about it. Do not ask me why but, in many ways, fewer people get injured than should do.
	I, as a responsible parent, should say to the noble Lord, Lord Goodhart, in response to his point about the parent going out with the instructor, that not every instructor knows everything. You learn only through experience. You can be taught only so much in a classroom, but until you have been in a tricky situation yourself, you do not really know how to deal with it and how to get out of it. Parents should be responsible for choosing which level of instructor their children go with. It is ridiculous automatically to expect the best instructor in the world to be in charge, with huge experience of getting people out of difficulty, just because there is a trip on, which some group has put on. You, as a parent, should decide whether the certification of that instructor is good enough. If you want to sign your child up with a silly instructor, that is your fault, in my mind. My wife and I have just been reading our health and safety instructions for the estate. My wife must physically check the certificates of competence of the contractors who come on to the farm, and she is liable if they are not up to it. It is not only the contractors who are liable. So I do not see why parents' actions should not be considered contributory to a large extent.
	That brings me swiftly—I shall finish very soon—to the point made by the noble Lord, Lord Lucas. I had thought of tabling an amendment on this, but when I saw the amendment tabled by the noble Lord, Lord Goodhart, I realised that it could equally and easily be dealt with alongside his proposal to strike out Clause 1. Again, I do not think that it would be accepted, because it would clarify the law too much for the lawyers who want to have something to fight over. Landowners are exposed to huge amounts of liability. If, for instance, there is a fun run on your footpath and people, such as marshals, stop on it, they no longer comply with what the footpath is to be used for in law. It is the landowner's responsibility to ensure that those people move on. If some injury takes place on that land, apparently the landlord will have contributory liability. That is the advice from insurance companies. Therefore, my wife has to check the insurance of any fun run taking place on the estate. The fun runners do not believe that and recently we have had major rows because they thought that they were covered under parish council insurance, but they are not.
	In law at the moment it is not clear on where a landowner's responsibility stops, even when a public footpath is being used. The burden of responsibility is ridiculous. Landlords are being forced to take a view that it may be safer not to allow such events to take place and not to have Scouts on the ground. We are having to carry out a health and safety risk assessment to decide how dangerous it is for Scouts to camp among the trees, what the risk is of them lighting a bonfire that might get out of control, and what is the risk of a branch falling. Of course, under some of the environment and forestry regulations, we may not be allowed to cut down a branch if, for instance, it has some rare flora or fauna attached to it and there may well be an order that prevents us removing a branch.
	The world becomes very complicated, which lawyers love. It is a minefield. We need protection, otherwise I am afraid that the countryside will be closed down to public access as much as possible. We must realise that. That is a result of the attitude of the noble Lord, Lord Goodhart, the noble Viscount, Lord Eccles, and the noble and learned Lord, Lord Ackner, to the situation.
	Please leave risk-takers to take risks. Interestingly, recent research has discovered that those who had adrenalin pumping through their blood when they were young as a result of taking risks live longer. I would rather have a few more exciting hours or days of life that I can enjoy than a few years drooling in a wheelchair when I can do nothing. That is my attitude to life. I am also better able to deal with danger because I dealt with it when I was young, when my reactions were good and fast. I have learnt how to deal with risk. We should allow our young to develop that sense. Please do not take this terribly safe route. They are going to die anyway and you will only expose them to greater danger when they are older because they will not know how to deal with it.

Lord Goodhart: My Lords, we have had an interesting debate, in which arguments have been put forward on both sides, which I respect. I am grateful for the support that I have had from the noble and learned Lord, Lord Ackner, and from the noble Viscount, Lord Eccles. The noble Lord, Lord Lucas, feared that there was a risk of a change in the law if Clause 1 was not enacted. I do not see that happening. We have had a recent, common-sense interpretation by the Appellate Committee of your Lordships' House in the Tomlinson case. Your Lordships' House is of course the highest court, whose decisions are binding on all inferior courts, and I see no likelihood whatever of that decision being changed, so I believe that there is no prospect of the law drifting. The noble Lord said that Clause 1 created certainty, but it does not. What is a desirable activity? What steps to meet a standard of care can be dispensed with in the case of a desirable activity?
	The noble Earl, Lord Erroll, said that lawyers were protecting their own business, but I am afraid that Clause 1 would provide all too much work for lawyers if it were enacted. The idea that parents should individually investigate the qualifications of instructors before allowing children to go on trips is quite unrealistic. He said, "Please leave risk-takers to take risks". Yes, I entirely agree with that view, but they must be able to decide on the basis of their own judgment and knowledge what risks to take and they should not be exposed to the risk of the incompetence of others.
	The noble Lord, Lord Hunt, referred to the difficulty in getting people to become Scout leaders, but Clause 1 will in no way make that easier. The real problem here is the cost of insurance premiums. The Scouts will still have to get insurance cover for people who work with them, and insurance companies will not be persuaded that Clause 1 will in any way justify lower premiums.
	In those circumstances, this is an issue of importance. Although I recognise, in view of the attitude taken by the noble Lord, Lord Hunt, that we cannot expect to win, I would like to make our views on this clear, and test the opinion of the House.

Lord Lucas: My Lords, the noble Lord, Lord Hunt of Wirral, was kind but entirely inaccurate to attribute this amendment to me. It has been the common cry of many tens of thousands of people for quite a long time that it should be possible to say sorry. That sentiment is expressed mostly by people who wished that other people had felt able to say sorry to them. I think that this is terribly important for three reasons. First, it is how this society should be. Saying "sorry" to share a person's grief and pain when you have been involved in the incident that has led to that grief and pain is a way in which we should feel able to relate to each other. It is an ordinary, proper, human expression of belonging to the same community and, in a very basic way, we should seek to encourage it.
	Secondly, it is good for the person who is said "sorry" to. That is an ordinary matter of personal experience in many different events. If someone says sorry to you, you feel that in some way the burden of grieving has been taken away from you personally, that there is an understanding that this has hurt you, and that there is the willingness to acknowledge that such incidents should be prevented as far as possible. I do not think that guilt comes into the word "sorry" in any way—there is no implicit admission of guilt and none should be assumed.
	Thirdly, it is extremely good for the person who says sorry. I illustrate the last two points by the experience of my young cousin's wife, who died shortly after childbirth as a result of a hospital-acquired infection which was not detected. She was sent home with the infection. It was not diagnosed by the GP and she died shortly after she returned to hospital. What hurt my cousin most was that the hospital would not say sorry. He believed—not entirely wrongly—that that meant that the hospital would never truly start to look for ways in which to ensure that such cases do not happen in future.
	It is understood and accepted that medicine is not perfect—that you cannot always spot such things, that you may mistake them for something else. There is generally an acceptance that the medical profession should not be persecuted for that, that perfection should not be assumed and that sometimes things will just happen. But the idea that you should not be said "sorry" to, the idea that something going wrong should not lead to that organisation openly and clearly seeking ways for that not to happen again, is terribly painful and unnecessary.
	It has clearly and formally reached that state of affairs in motor insurance, as the noble Lord, Lord Goodhart, mentioned. In my personal experience, and in frequent anecdote in medical cases, it is clear that saying sorry has been discouraged. We need to do something about that. I lay no claim to how this amendment should be worded—I am not a lawyer. I do not want to put people who have been injured in a position where their rights are diminished by any such clause. But I think that we need to move the basis on which we run this society back towards saying sorry as the usual, honest and ordinary thing to do, irrespective of fault.

Baroness Ashton of Upholland: My Lords, I must begin by saying that I am sorry. I am always sorry when I would dearly like to accept an amendment but cannot. I share the sentiments expressed by all noble Lords who have spoken. I appreciate and understand what is being sought by this amendment. I think that the noble Lord, Lord Hunt of the Wirral, will not mind my saying that I was very keen to try to find a way of accepting this amendment. The reason why I cannot became clear when I sought advice. I hesitate to say that, given all the legal expertise surrounding me, but I hope that noble Lords will appreciate that I must go to my legal advisors and see where that takes me. We went to parliamentary counsel to see whether we could accept the amendment and to confirm that the amendment would not change the law but correct the perception of what the law does.
	I have already made the case in Clause 1 for perception being an important element in all our work on compensation. Regardless of whether you believe that we have a compensation culture—and the evidence suggests per se that we do not—it is very definitely perceived that we do. It is important for governments to take perception as seriously as reality in this particular context. I sought advice on that basis. However, we were unable to produce a meaningful legislative proposition without changing the law. That is because the amendment, as it stands, begs the question of what an apology of itself is. Any doubt about what constitutes an apology, and whether it acts in any way as an admission that the maker was at fault, is a doubt about that facts and the circumstances of the particular case. It is not possible for legislation to resolve that sort of doubt except by imposing a presumption one way or the other. We believe that that runs the risk of changing the law.
	I agree that it is important to address this issue. Although I know that this may not satisfy noble Lords, I must make clear that part of the work of the ministerial group is to address all issues of the compensation culture where the Government have a role to play. The group receives representations from nine departments but 11 Ministers are members of it. I chair it and it meets regularly. The group includes my colleagues from the Department of Health, the Home Office and the Department for Work and Pensions, where my noble friend Lord Hunt of Kings Heath is working with me on rehabilitation issues. The Health and Safety Executive is able to come to talk to us.
	Our ambition is to produce opportunities right across government to address this problem wherever it arises and to support organisations, whether they be schools, voluntary organisations, local authorities or others, in resisting unfounded claims and developing strategies to deal with such claims. At the same time—I stress this—we want to make it easier and simpler for well founded claims to be dealt with. I agree wholeheartedly with what the noble Lord, Lord Hunt of Wirral, said about the need to deal with rehabilitation issues, and I know that we will talk about that further. But I believe that putting people back to where they were is absolutely the right way to approach this matter.
	Therefore, I propose to take this issue to the ministerial group. As noble Lords probably know already, we have a number of stakeholders from industry and from organisations involved in areas where this is a particular concern. We are working together to address a number of different concerns and to come up with solutions which will not necessarily be legislative—although, I hasten to add, I do not rule that out in the future—but which will tackle those concerns in the most appropriate way.
	Although the noble Viscount, Lord Bledisloe, talked about what has already been said in the courts about motor insurance policies, I think that that is also in the area of perception. People believe that if their policies say that they should not apologise, they should therefore not apologise. I agree with everything that has been said about buying Willy a bicycle—that would be good. I am sure that the noble Lord, Lord Goodhart, does ride a bicycle.

Viscount Bledisloe: My Lords, I find it impossible to understand, given the noble Baroness's advice, how anyone could say that you cannot distinguish between a mere apology for being the unwitting and unblameful cause of someone being hurt from an apology which contains, as well as that, an admission of guilt through saying, "I did it because I didn't see you". If the noble Baroness has had advice to that effect, would she be prepared to share it with us so that we can explain to her how misguided it appears to be?

Baroness Ashton of Upholland: I was grateful for the apology from the noble Lord, Lord Hunt of Wirral, for winning the last amendment. I, too, stand by what I said, and I accept entirely what he was seeking to achieve. If we are able to retain it within the legislation on the grounds that, as he recognises, none of us is seeking to change the law, I would be delighted. We will discuss the wording that might ensue from that at the earliest opportunity.
	As the noble Lord, Lord Goodhart, said, this amendment is different, as it takes us to a different place. Like him, I consider that if one were to alter the Occupiers' Liability Act 1984, separate legislation would be better as it would allow a fuller consideration. That is an important point, which noble Lords need to take on board.
	Let me explain why I do not wish to accept the amendment. The noble Lord, Lord Hunt of Wirral, has already indicated what we did within the Criminal Justice Act 2003, while recognising that that was about trespass—or assault as I know it as a non-lawyer—against the person. I have checked, and we can find no evidence whatever of any reported case that has found in favour of criminals in terms of negligence. I would therefore argue that the courts are doing their job extremely well. In any event, these claims seldom arise, and as noble Lords involved in the legal profession in particular will know, the courts already take into account all the circumstances of the case. A number of factors will limit the possibility of any claim by a criminal succeeding, and do so effectively, as borne out by the lack of evidence of such claims.
	For example, the courts will always take into account the reason why a trespasser was on the property, which is clearly relevant to foreseeability and the steps that it is reasonable to take to avoid a risk of injury to persons on a property. The amendment seems intended to go further in providing for the courts to take into account the intention of the trespasser. We believe, however, that the courts do that very well already. Any claim by a criminal is likely to raise the common law maxim, which I have in Latin, but which I will say in English—an action does not arise from an unjust cause. How far that maxim would remain applicable over and above the statutory provision that the amendment would make is not clear.
	In practical terms, it is also difficult to assess the intentions of the claimant and to establish whether they entered on land intending to commit an offence. Of course, if a burglar comes into one's house in the dead of night, that is clear cut; but there will be cases that are not clear cut. It is therefore important that we allow the courts to determine the matter as they currently do. We believe that the amendment could create some arbitrary outcomes. As I have indicated, the Occupiers' Liability Act 1984, were it to be looked at again, should be looked at separately. I am always willing to pass on that view to my ministerial colleagues with that responsibility. The Act provides, of course, that no duty is owed in respect of risks willingly accepted as his by the claimant. The amendment uses the same words, but for the different purpose of deciding what should be done to meet the standard of care. My second concern is therefore that this amendment might create confusion in the law, which the Government could not accept.
	Of course, the question of whether a claimant willingly accepted a risk as his is a well established principle of common law—you cannot sue for something to which you expressly agreed; again, I have the Latin version of that, and though noble Lords would like to hear it, I hesitate to try to get my Latin accent accurate. That is always taken into account by the courts when deciding any claims. If we wished to re-examine the particular statute, we should do so appropriately and not via this Bill. There is no evidence to suggest that the courts are doing anything other than considering the issues appropriately in terms of acceptance of risk and the balance to be struck between rights and responsibility. We therefore think that the amendment is unnecessary.
	Whereas I fully accept the need to deal with issues of perception, and I understand the principle of the last amendment put forward by the noble Lord, Lord Hunt of Wirral—even though I could not accept the amendment as it stood—I will now be in a slightly different position. The principle behind Clause 1 is to try to tackle the perception. This is a different case, because it is about changing the law, which is not the appropriate way to tackle this issue. I hope that the noble Lord will withdraw the amendment and allow the Government to take the matter forward on a different route if that seems appropriate.

Lord Hunt of Wirral: My Lords, I am grateful to those noble Lords who have participated in the debate on this amendment. I have come across the argument before that where one is venturing into amending previous statutes one should have a wider review. However, the Government have already taken action in the Criminal Justice Act 2003 in seeking to right a wrong. Unfortunately, it did not go far enough. This amendment would go a little further to make sure that cases such as those reported—of which I am aware but the Minister does not appear to be—where a potential burglar has recovered damages after falling through a plate glass window, for example, when they had no right to be near that window at the time.
	I have taken advice and understand that a number of claims for damages have been put forward by burglars or potential burglars and those who have entered land with felonious or misdemeanour intent. Sadly, the facts of life are that those claims are being settled and paid. Often, they are nuisance claims. They are pretty frivolous and make society reasonably angry, but as the law stands they are perfectly valid claims. Therefore, there is a lacuna there which has been met in part by the Criminal Justice Act 2003. I agree with the noble Earl, Lord Erroll, and with the noble Lord, Lord Monson, that this provision has attractions because it rights what is perceived to be a wrong. This was never in our minds when I was Minister with responsibility for coal at the time of the miners' strike when the Occupiers' Liability Bill went through Parliament. My colleagues in the department did not envisage that they would be allowing people with criminal intent to recover damages.
	I hope that the Minister will accept that I am moving this amendment with the best of intentions. I am seeking to right a wrong and I hope that the House will accept the amendment. Equally, if there is a better way of addressing this lacuna I remain open to suggestions, but we have thought very carefully since Grand Committee. I have taken advice from a range of experts and we believe that this is the right way forward. Therefore, I wish to test the opinion of the House.

The Earl of Erroll: My Lords, I fear that I beg to disagree with the amendment and hope that it does not go through. Clause 1, in dealing with "desirable activity" and so on, will allow people to decide when, sometimes, the Health and Safety Executive or the rules have gone completely mad. Theoretically, every accident should be avoidable—apart from acts of God—but at what cost? Sometimes, we will find that things are not happening as a result; the infrastructure will then break down because no-one can afford to do anything.
	A simple example is: how many people does it take to change a light bulb? Let us imagine that it is midwinter, there is an old person who does not want to sit in the dark, and a small step-ladder is required to get up to the overhead light. The local authority sends round some people to change the light bulb. How many people do your Lordships think are needed? The answer is three, or possibly four: one person to climb up the ladder and change the bulb, another to hold the ladder steady, a third to isolate the electricity supply at the mains switch at the critical moment when the bulb is being changed—since the wiring may be faulty, it cannot be assumed to be all right—and, because the older person may be distressed at having so many people running around the flat by this point, a fourth person to counsel them on what is going on. Your Lordships may think that I jest, but that is in actual local authority guidance.
	We should think about whether we are bringing the world to a halt with excessive health and safety requirements. Not every accident is avoidable. Some things that one does will be all right 99.99 per cent of the time. To try and impose extreme costs to guard against that 0.01 per cent of the time when someone may have a mild injury in the workplace is, to me, excessive. So the test in Clause 1 is right. To completely block out when the Health and Safety Executive may be being stupid and over-the-top would be counter-productive.

Lord Hunt of Wirral: My Lords, when we considered Part 2 in Grand Committee against the background of a general welcome for the Government's decision to regulate this area of activity we placed a great deal of emphasis on the need to consider the Financial Services Authority-style model of regulation, under which the spotlight falls firmly on an individual approved person who is then accountable for the actions of the authorised firm. That has the effect of driving behaviour at senior level. More to the point, in the world of claims farmers, which has the unfortunate reputation of companies collapsing overnight, it leaves an individual answerable, even when the company itself is no longer trading.
	That is why we seek to introduce a safeguard into the Government's proposals, so that where authorisation is granted to a limited company or some other corporate entity there is still individual accountability. While I know that the Government have moved some distance towards that model I am still concerned that the current version of the proposals falls short of that sanction. However, I want to hear not what I have to say on the amendment but what the Minister has to say, because she made extensive promises in Committee. I quote from her response to a point raised by the noble Lord, Lord Goodhart, who asked:
	"Is the noble Baroness likely to be in a position to give us an indication of who or what the regulator is going to be before the Bill leaves your Lordships' House?".
	The Minister responded:
	"Certainly. It is my ambition that by the Report stage, the noble Lord will have information about what the Government have done on the back of Mr Boleat's report; our considered view on which direction we intend to move; whether the regulator is to be a designated organisation, which it will be; what we propose in terms of the arrangements to set up the body and fund it; and, lastly, our views on where we expect the market to go and our assumptions based on that. We aim to give the noble Lord"—
	and of course, the House—
	" . . . a clear idea of what the Government intend to do . . . I hope to achieve all that by the Report stage".—[Official Report, 16/1/06; col. GC 183-84.]
	I can hardly wait to hear what the Minister has to say. I beg to move.

Baroness Ashton of Upholland: My Lords, as the noble Lord pointed out, as drafted, the issue is not the residence of the client but the location of where the claim would be litigated. The amendment has the effect of restricting regulation only to claims services provided to people who are resident in England and Wales. That is not what we are seeking to do. I know what the noble Lord is driving at underneath that; it is important and we talked at some length in Grand Committee about some of the issues that the noble Lord raised. As I said then, if the company is providing any kind of claim management in England and Wales it has to be authorised to do so. If it is not authorised it commits an offence. Then the issue becomes one of enforcement. We allow the regulator to take enforcement action if a claims management company is advertising or offering claims management services but is not authorised to do so. That is the offence in Clause 9.
	If the company is based outside England and Wales, enforcement could involve extradition proceedings. That depends on whether we have an arrangement with the country concerned and whether the offence and conduct involved fall within the applicable schemes. Noble Lords will know that these exist particularly between the UK and most European countries, the Commonwealth and the USA. We would argue that extradition is clearly a last resort. The co-operation of other providers is vital in ensuring that regulation of this sector is effective in protecting consumers. A claims management company operating offshore but providing services to consumers in England and Wales would fall within the jurisdiction of English law and could be prosecuted under this Bill provided they were within the jurisdiction of our courts. This could happen either by the service provider voluntarily submitting themselves to the jurisdiction of the English courts or, as I said, by the process of extradition.
	I am quite interested in how some of the issues reach across the work on civil justice that we are doing with our colleagues in the European Union. This has not come up in any of the discussions that we have had but I increasingly think that it might be something that we will want to begin to raise. That is the current position. I am very mindful of what the noble Lord seeks to do and we are in discussions, as part of the work of the ministerial group, about some of these issues more widely across government. I hope that that gives the noble Lord at least the beginning of an answer for now.

Baroness Ashton of Upholland: My Lords, Amendment No. 14 seeks to address concerns raised in Grand Committee. The amendment replaces many of the criteria that the Secretary of State may take into account when designating a person to act as regulator. Significant concerns were raised by noble Lords that the provisions in the Bill should be made clearer in relation to his responsibility to ensure that authorised persons meet high standards of competence and professional conduct when providing regulated claims management services.
	The amendment also makes clear that the regulator will ensure that those providing regulated claims management services provide information to claimants about charges and other related matters. I think we all agree that it is vital that we deal with this as it is an area of particular concern to noble Lords. Consumers are not necessarily advised of free, alternative means of pursuing their claims, and that it not acceptable. It is a matter about which I know the noble Lords, Lord Hunt and Lord Goodhart, feel very strongly. When people are considering making a claim, they need to be able to make an informed choice about the best way forward on the basis of complete and transparent information about the options. For example, if they are pursuing a claim for a mis-sold endowment policy, they need to understand the implications of 25 per cent or more of their compensation being taken as a fee by the intermediary. That could increase the shortfall on their mortgage significantly and could be avoided if they used the free, alternative scheme available and pursued the claim directly themselves.
	We have also clarified the regulator's role in relation to competition. On that point, I undertook to seek a view from the Office of Fair Trading. Competition enforcement officials in the OFT have confirmed that they do not have a responsibility for competition in relation to any regulator designated under Clause 3. Therefore, there is a role for the designated person to ensure that any practices in relation to regulated claims management services meet competition requirements.
	I hope that the amendment meets the concerns raised by noble Lords—I am grateful to them for doing so—and that it gives the reassurance they were seeking. I beg to move.

Baroness Ashton of Upholland: My Lords, I certainly tried as well. I tried very hard to deal with this and I am grateful to the noble Lord for raising this matter again as it helps me fulfil the commitment that I made that I would look at it.
	I have done lots of things including talking to Parliamentary Counsel about this matter because I understand what the noble Lord is seeking to do. I would like to state for the record why we have stuck with the original wording. In the context of the principles of administrative law, requirement to try to meet targets is no less strict than a requirement to take all reasonable steps. Unless the regulator has taken all reasonable steps, he will not have tried sufficiently to satisfy his legal duty. The requirement to "try to" is also already found in the statute book and I do not want to suggest by any means that amending here somehow suggests that the duty is a weaker one in other parts of legislation. I draw the noble Lord's attention to Section 2(7) of the Civil Procedure Act 1997 or Section 10(4)(f) of the Police (Northern Ireland) Act 2003 where the same words are used.
	I did go away, I discussed this, I looked into whether there were other options because I understood the point the noble Lord was seeking to achieve. But I was convinced by Parliamentary Counsel that in the context of the way in which this works both in current statute and in administrative law that we had a phrase that would achieve what the noble Lord, Lord Hunt, and I both wish to achieve—that is to ensure that, failing other actions that we cannot predict, the regulator is heading towards meeting his targets.

Lord Hunt of Wirral: My Lords, hooray. This amendment is very welcome because it removes the last vestige of ambiguity about the intention to get a system of regulation up and running as soon as possible.
	Those noble Lords who followed these debates will be all too aware of my often re-stated belief that the long-term solution to the ills of this sector must be an arms-length regulator who is closely allied with the FSA model of regulation. However, we all tend to live in the short-term and the need for action is urgent if vulnerable people are to be protected. I therefore welcome this re-statement of the role of the Secretary of State as the regulator of last resort. The last we heard about this amendment was that the Government might accept it. I am delighted to learn that they now "shall" accept it.

Amendment agreed to.
	Clause 4 [Exemptions]:

Baroness Ashton of Upholland: My Lords, I share the noble Lord's concern. We clearly do not want to subject individuals to double regulation where they are already regulated adequately in the provision of claims management services by their professional or other body. However, existing regulatory bodies do not necessarily regulate the provision of claims management services by their members. I emphasise that where professionals offer regulated claims management services as part of their business separately from professional practice and outside the regulatory ambit of professional bodies, they would need to be authorised. The Secretary of State would not in practice exempt those who are already regulated unless he was satisfied that they were subject to comparable standards of regulation. Any decision to exempt will be based on a reasonable and fair assessment of the business activities of that person or class
	The legal professional bodies, including the Law Society, Bar Council and Institute of Legal Executives, are all authorised bodies for the purposes of the Courts and Legal Services Act 1990. The Secretary of State approves their rules, in consultation with an independent advisory body, the Office of Fair Trading, and the four designated judges, in relation to rights of audience and rights to conduct litigation, and so has already judged the standards of those bodies.
	In exempting a particular class, the Secretary of State would be required by ordinary public law principles to take into account relevant criteria, ignore irrelevant criteria, and give proper procedural consideration to each candidate or class of candidates for exemption. I certainly agree that we should avoid double regulation. To ensure that no regulatory gaps exist, dual regulation will in some circumstances be needed; for example, where a person or business is regulated by different regulators for different activities. I hope that answers the noble Lord's point and that he is able to withdraw his amendment.

Lord Goodhart: Clause 5(1) makes it an offence for anyone to provide regulated claims management services unless they are authorised persons, are exempt, have the benefit of a waiver or are not acting in the course of business. Clause 5(2) gives a defence to a person who may be charged under subsection (1) if he shows that that he did not know that he was committing an offence and could not reasonably have been expected to know it.
	It is a basic principle of criminal law that ignorance of the law is no defence. That principle may, on first hearing, sound unfair, but it has worked well and it has a logical basis. It makes it more difficult to put up bogus defences which waste the time of the court and could occasionally lead to guilty people being acquitted. If someone really does not know that what he is doing is wrong, he will not be prosecuted or, if he is prosecuted, he will receive a light or nominal sentence. For example, when it becomes an offence, as it shortly will be, to smoke in a pub, a lot of people are likely not to be aware of it until after the law comes in. Some of them will be foreign visitors who have no reason to know that it is now unlawful to light a cigarette in a pub. What will happen in practice is that they will be told to put out their cigarettes and they will not be prosecuted.
	Clause 5(2) makes ignorance of the law a defence if that ignorance is reasonable. I believe that that provision is unique. In discussions earlier with the Minister and the Bill team, I said so and asked for precedents. The department produced a list of five. All of them deal with a different point. Perhaps I may be a little technical. Although ignorance of the law is no defence, in general, ignorance of the facts which make your action an offence is normally a defence, because you have to intend to carry out a criminal act to establish what we still know in Latin as mens rea.
	However, some offences are offences of strict liability; that is, someone may know the law absolutely, but does not know all facts relevant to his offence. These arise mostly in the consumer field. For example, the publication of a misleading advertisement or the sale of food unfit for human consumption is an offence, even if the person who publishes the advertisement does not know that it is misleading or the person who is selling the food does not know that it is bad. That is ignorance of the facts, not of the law.
	In some cases, statute makes ignorance of the facts a defence if the defendant did not know, and had no reason to know, that those facts existed. That applies both to publication of misleading advertisements and sale of bad food, which were the two examples given by the Bill team. All five examples fall into this category. I therefore believe that Clause 5(2) is unique and would be a bad precedent. Making ignorance of the law a defence means in principle that there could be longer hearings and loopholes. In those circumstances, I believe that it is right that Clause 5(2) should be deleted, and I beg to move.

Lord Goodhart: moved, as an amendment to Amendment No. 23, Amendment No. 24:
	Line 2, after "Circuit" insert "or District"

Lord Goodhart: My Lords, before I turn to Amendment No. 24, I am extremely grateful to the noble Baroness for having taken on board what I think is quite an important issue that was raised in Grand Committee. I am delighted to see that now there will have to be a judicial warrant for the entry and search powers.

Baroness Ashton of Upholland: moved Amendment No. 25:
	Page 5, line 4, leave out paragraphs (a) and (b) and insert—
	"(a) specifying matters of which a judge or justice of the peace must be satisfied, or to which he must have regard, before issuing a warrant under subsection (4A), and
	(b) regulating the exercise of a power under or by virtue of subsection (4) or (4A) (whether by restricting the circumstances in which a power may be exercised, by specifying conditions to be complied with in the exercise of a power, or otherwise)."
	On Question, amendment agreed to.
	Clause 7 [Regulations]:
	Amendment No. 26 not moved.
	Clause 8 [Obstructing the Regulator]:

Baroness Ashton of Upholland: moved Amendment No. 29:
	After Clause 9, insert the following new clause—
	"APPEALS AND REFERENCES TO TRIBUNAL
	(1) A person may appeal to the Claims Management Services Tribunal if the Regulator—
	(a) refuses the person's application for authorisation,
	(b) grants the person authorisation on terms or subject to conditions,
	(c) imposes conditions on the person's authorisation,
	(d) suspends the person's authorisation, or
	(e) cancels the person's authorisation.
	(2) The Regulator may refer to the Tribunal (with or without findings of fact or recommendations)—
	(a) a complaint about the professional conduct of an authorised person, or
	(b) the question whether an authorised person has complied with a rule of professional conduct.
	(3) On a reference or appeal under this section the Tribunal—
	(a) may take any decision on an application for authorisation that the Regulator could have taken;
	(b) may impose or remove conditions on a person's authorisation;
	(c) may suspend a person's authorisation;
	(d) may cancel a person's authorisation;
	(e) may remit a matter to the Regulator;
	(f) may not award costs.
	(4) An authorised person may appeal to the Court of Appeal against a decision of the Tribunal."
	On Question, amendment agreed to.
	Clause 12 [Commencement]:
	[Amendment No. 30 not moved.]
	Schedule [Claims Management Regulations]:

Baroness Ashton of Upholland: Amendment No. 35 makes it clear that regulations will require the regulator to satisfy himself of the competence and suitability of an applicant before granting authorisation. It also puts the regulator under a duty to apply the criteria set out in regulations. During the debates in Grand Committee, noble Lords made a number of helpful suggestions about what these minimum criteria should be. The amendment specifies the areas to which the criteria should relate. We want to retain flexibility of the regulatory framework to ensure it can respond to the changing nature of the market, so the precise detail will be expanded in regulations and of course more criteria can be added.
	As I have already mentioned, in addition to information about the company, the controlling individuals in that company will be required to provide personal information to which I have already referred. They will also be required to make a statement of competence demonstrating that they have the knowledge and skills required to provide the regulated service, including details of relevant experience. The applicant, person or organisation will be required to certify that they have read and understood the rules and codes of practice, and sign a declaration that they comply, and will continue to comply, with them. The regulator will then assess an application, and will make a judgment, based on all the evidence available, about whether or not to grant authorisation. That will take account of both the applicant's fitness and competence to provide the regulated service, and compliance with the rules and codes of practice.
	The procedure I have outlined will allow a robust assessment of the competence and suitability of applicants—something which I know concerns the noble Lord, Lord Hunt of Wirral. I hope he will welcome the amendment as helping to ensure that only those who meet the standards are allowed to offer regulated claims management services to consumers. I beg to move.

Lord Hunt of Wirral: In the amendments introduced by the Government today there is a sensible list of criteria which the regulator should consider. But there are two potential gaps in the list. The Minister will know how concerned I am about the way in which claims management services are advertised. I believe this to be an area which the regulator ought to be considering on any application. Many of the current advertisements are frankly distasteful. More particularly, Amendment No. 38 would enable the regulator, when considering an application from an existing provider of services, to look at their track record on advertising and require some improvement.
	My second point about the list relates to the problems caused by claims farmers who fail to advise claimants that a free alternative service is available. That is particularly rife in the area of endowment mis-selling but has been a problem elsewhere—in the context of criminal injury claims, for example. In Grand Committee, I highlighted the actions of one particular company following the tragic bombings on 7 July. This is an important area of activity to be considered by the regulator when granting authorisations.
	My final point on the criteria for the regulator is a technical one about the Government's drafting on paragraph 5(2)(b), where it seems that the regulations proposed need to refer to the applicant for authorisation as well as to persons employed or otherwise connected with the applicant. I beg to move.

Lord Goodhart: My Lords, owing to an error which I made yesterday, I arranged for Amendment No. 37—which ought to be in this group—to be put into the following group. I hope that the Minister will not mind if I speak to it now as part of this group, where it obviously belongs.
	The background to this is that the Bill as it now stands permits or requires,
	"the application of subjective criteria relating to competence or suitability".
	I expressed my unhappiness with that in Grand Committee and I am glad to see that that particular version has gone as a result of the amendment now being proposed. We now have a long list of relatively subjective criteria. I noticed that the first draft that was produced added a further criterion which was honesty, which seemed to open up far too wide a field of investigation and was again potentially highly subjective and much too general, so I am glad to see that it does not appear in the amendment in its final form. However, one thing that is missing here is any evidence of professional or business misconduct. That ought to be included in the criteria.
	The list includes:
	"criminal records; proceedings in any court or tribunal; proceedings of a body exercising functions in relation to a trade or profession",
	and so forth. Professional or business misconduct may well be caught by proceedings in a tribunal or,
	"proceedings of a body exercising functions in relation to a trade or profession",
	but it is certainly not inevitable that that would be the case. I would have thought that where there is evidence of professional or business misconduct, that ought to be an important criterion for the regulator to consider. In those circumstances, I hope that the Minister will consider adding this as another criterion. I am happy with the criteria otherwise set out in paragraph (3)(c) of the amendment.

Lord Borrie: My Lords, I understand the pressures on time, but the noble Lord, Lord Hunt of Wirral, referred on a number of occasions in Grand Committee to advertisements. He gave examples again this evening of "distasteful" advertisements by claims management companies and other problems arising because claims management companies have failed to indicate—and thereby confusing people watching television or reading—that alternative services are available free of charge. These matters concerned him.
	My noble friend the Minister stated that research had been undertaken by or on behalf of the Advertising Standards Authority—I declare my interest as chairman. This has been funded mostly by the Department for Constitutional Affairs, the Minister's own department, but also partly by the Advertising Standards Authority. The first results—which I have seen in draft and which will be fully available to everybody in April—suggest that a number of distasteful advertisements of the kind mentioned could be dealt with, if they continue to exist, by the Advertising Standards Authority's own code of practice, dealing with misleading or offensive advertisements. I have to admit that not all could be.
	For example, the rubric in our advertising code of practice is something like that any advertisement which is seriously offensive or likely to cause widespread offence is a breach of our codes of practice. There is a difference between taste and offensiveness. One advertisement mentioned by the noble Lord, Lord Hunt, in Grand Committee suggests that, if compensation is won as the result of a successful claim, then you can have a nice holiday in the Caribbean. I am not sure I see that as being offensive, though I can see it will be distasteful from certain points of view. You may think it distasteful, and perhaps you wish to regulate against it, but I have to admit that the Advertising Standards Authority would find it difficult to regard it as coming within its rubric of being offensive.
	Similarly, some of the things that the noble Lord seems to want are really matters of better consumer education, rather than for advertisements to deal with them. For example, I do not expect—nor does my authority—advertisements to include the services that may be offered by rivals, or offered free of charge by somebody else. An advertisement is a promotion of one's own commercial and marketing practice and services. While I would like to see a lot of caution in this regard, I have some sympathy for the view put forward by the noble Lord, Lord Goodhart, that there is a need in authorisation processes to have some kind of conduct-of-business rules. So long as these are carefully considered one by one, and not just dashed off as the result of some amusing or distasteful advertisements and practices that have been mentioned in Grand Committee or today, I see no objection to that.

Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords for the opportunity to discuss many of these issues. On Amendment No. 36, moved by the noble Lord, Lord Hunt of Wirral, I know that he recognises the importance that we attach to ensuring that individuals are captured. I hope he will recognise that, in two or three of the amendments that we talked to earlier today, we have clarified our intention for authorisation in a way that will reassure him.
	As I said earlier, we envisage that entities will be authorised as either individuals, partnerships or companies. Where a partnership or company is authorised, the controlling individuals within that partnership or company will be assessed for their competence and suitability to provide the authorised services. The amendment is unnecessary as Amendment No. 35 already requires the regulator to be satisfied of the applicant's competence and suitability, and requires the regulator to apply the criteria specified in regulations for that purpose.
	On Amendment No. 37, the noble Lord, Lord Goodhart, seeks to cover areas which we believe are already caught by one or more of the headings that we have specified in Amendment No. 35. I have not been able to establish a relevant professional or business misconduct which would not fall either within sub-paragraph (c)(iii),
	"proceedings of a body exercising functions in relation to a trade or profession",
	or relate to criminal and other court proceedings. I was nervous about accepting this amendment because the wording is quite broad, and we do not want to give the regulator open discretion in any activity that appears to him to amount to misconduct. It is better that we stick within the objective criteria. If the noble Lord can think of something that is not covered, I would be more than happy to discuss that with him. That is the basis of rejecting the amendment, and not because I disagree at all with the spirit of it.
	On Amendment No. 38, as my noble friend Lord Borrie has indicated, we are looking at the research, and have just had the early result in. To correct by noble friend—he will not mind—we plan to have the research available to your Lordships before Third Reading because we thought you would want to see that. I hope that this will be before April. That is the only difference, and I apologise to my noble friend. That is the decision I have taken, and it is important that we do that.
	As my noble friend said, we want to look carefully at the findings. The intention is to present the research to the code-owning bodies, the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice, so that they can judge whether changes to the advertising codes would be necessary or appropriate. The Department for Constitutional Affairs does not plan to legislate on advertising, other than to ensure that the rules governing the activities of persons authorised to provide claims management services place those persons under a duty to market their services responsibly. To breach the rules would be a conduct issue, much as solicitors are covered. If the ASA has upheld a complaint about an advertisement placed by an authorised person, this would likely lead to a disciplinary investigation by the regulator. I hope this will address those particular concerns. As for hospitals, my honourable friends in the ministerial group are looking at this issue in the context of the health service.
	On Amendment No. 39, again I found myself in agreement with the spirit of what the noble Lord is saying, but we think we have adequately covered this by amending the criteria for designating the regulator to include particular reference to the provision of information about charges and other matters. As I have indicated, the Government see this as a guiding principle of regulation.
	I hope I have addressed all the points that noble Lords raised, and that they feel able to withdraw their amendments while I move mine.

Lord Goodhart: My Lords, I intend to be brief because the amendment involves a small point. Amendments Nos. 43, 46 and 56 concern a number of references to professional conduct of authorised persons in the Schedule to the Bill. I raise this because it is hard, basically, to describe claims management as a profession. Admittedly, a considerable number of the people involved will be solicitors who are members of the profession, but there are also many people involved who are not. In those circumstances, it seems inappropriate to refer to professional conduct, simply and completely. Originally—in Grand Committee—I proposed to delete the word "professional"; here I have come up with an alternative solution, which is to say "professional and business". That seems to be more appropriate than simply to refer to professional conduct. I beg to move.

Lord Hunt of Wirral: My Lords, the Government have sensibly proposed an amendment to tidy up paragraph 11 of the Schedule, dealing with provision for the regulator to investigate complaints about the conduct of authorised persons. The number of complaints is unlikely to be very great and there really should be a requirement that the regulator should investigate all of them. That is the purpose of this short amendment. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Goodhart, for his comments.
	The reason why I am not going to accept Amendment No. 52 is because, in the vast majority of cases, we would expect complaints to be resolved between the authorised person and the consumer, and we want to involve the regulator only when the complaint was not resolved to the consumer's satisfaction, rather than his looking at everyone. So there might be circumstances in which a consumer approaches the regulator with a complaint and, when they have not done so already, is advised to approach the authorised person, and it is then resolved. That would not be permissible under the amendment, and I hope that the noble Lord accepts that that is why I am not accepting it.

Baroness Byford: My Lords, I am grateful to the noble Countess, Lady Mar, for bringing these regulations to the attention of the House tonight. She has explained and gone into her concerns in great detail. I do not propose to repeat all that she has said because that would make this a very long session, but I do thank her.
	I have questions for the Minister on two particular issues she has raised. First, in her contribution, the noble Countess asked why TSE researchers in Edinburgh, such as the Moredun Research Institute, are refused information about which scrapie strains have been used as a basis for the design of the national scrapie eradication plan. We should have an answer to that. Secondly, we should seek clarification from the Minister on the qualifications that would be required of the inspectors. I apologise for my voice, as well.
	When the 2002 TSE regulations were debated, concern was expressed that they were over-prescriptive. The Minister restated the Government's confidence that these regulations were appropriate, but I question that again tonight. The issues raised by the noble Countess reinforce that. She inquired again of the Minister if he is confident about the soundness of the science on which decisions are being taken.
	I am sure the Minister would agree that atypical scrapie is a sporadic eruption of the disease that can occur in even the most resistant genotypes. I understand that knowledge of it is still growing, but that it is still incomplete. It does, however, happen where there is no connection by breeding or any other occurrence of the disease. While the atypical disease has similarities to classical scrapie, it is not necessarily precisely the same, hence its title "atypical". I would like the Minister to comment on that.
	I shall turn to the nitty-gritty of these regulations. On Regulation 17(1), how is an inspector to know when or whether domestic premises are being used in connection with these regulations? If entry is going to be made, I presume, although I did not see it, that a warrant would be obtained first. In all the other regulations we have talked about, a warrant is normally sought when entry is to be made into a domestic dwelling. Could I have it confirmed that this is also appropriate here?
	On Regulation 22, how can Defra justify penalties of this magnitude in the face of the Prime Minister's announcement 10 days ago that he will introduce fines of up to £1,000 for assault or harassment of NHS staff, when here there is a possibility of a prison sentence as well? In Regulation 1(1) of Part 1 of Schedule 2, 1(1) of Schedule 3 and 1(1) of Schedule 4, is there any significance in the use of the phrase "under his charge", compared with "under his control" in the other two? What is the difference?
	In Regulation 6(3) in Part 1 of Schedule 2, why is the charge to be met by the occupier if the no-test could relate to a sample that cannot be tested for any reason, as in Regulation 5(3) in the same schedule? At page 17, paragraph 2, does the,
	"determination of whether or not",
	mean the same as "confirmation that", and if not, will the Minister explain how one determines a suspicion? At page 29, paragraph 6(2), which deals with compensation, would the valuer's fee have to be paid by the owner, even where the suspect feed had been contaminated before it was delivered to the owner? Would it have to be paid by the owner even if it were proved after the slaughter of the animal that the inspector's belief that the feed was contaminated was erroneous?
	I turn to page 19 and ask the Minister to look at the compensation table. It was only the 10 February that we passed that statutory instrument. The noble Baroness, Lady Farrington, was the Minister who responded at that time. I raised the question of why pedigree beef animals at the younger age received no compensation when clearly in all other sectors at that age compensation was paid. I raised it in the debate then on 10 February but I have had no word at all from the department. I would expect that the matter could be clarified tonight. I fail to understand why a pedigree animal does not qualify for payment. It is beyond me. I beg to support the Minister in the questions that she has raised tonight.

Lord Hylton: My Lords, once again I declare my interest as a farmer and as a dairy producer of milk. I would like to thank my noble friend Lady Mar for giving us the chance of this debate and for the rigorous way in which she examined the regulations. I welcome the element of consolidation included in the regulations and in general the control and eradication provisions, subject always to the application of the most recent, relevant and accepted science, a point my noble friend made so forcefully.
	I agree with her that it is more than possible that the powers given to inspectors are too wide; in particular inspectors should be required to return all records taken away within a reasonable time. That is not written in the order. Going a little further, Her Majesty's Government should ensure that there are sufficient abattoirs to serve all the main livestock areas in the country. That is necessary both for healthy and for fallen and casualty stock following the concentration that has been going on in recent years in places of slaughter. It is also necessary both on economic and on animal welfare grounds. Will the Government therefore put the matter firmly on the agendas of rural development agencies and of the other quangos supposed to be addressing rural problems? RDAs could be given the task of assisting new, small and medium-sized abattoirs to open in areas of need.
	I turn to a wider point concerning animal health. Is there anyone in the Cabinet who appreciates just how heavy has been the impact of cattle diseases on farming and therefore on the whole of the rural economy? Britain used to be the livestock rearing place of the whole world. Successive epidemics of BSE, foot and mouth disease and TB have ended that, alas. The general public have been momentarily alarmed by media reports of animals with diseases and often of the sluggish official responses. But, I ask, how many people really understand the cumulative effect of those outbreaks? There is plenty of evidence in terms of farmers who have committed suicide, for example, and of the continuing consolidation into ever-larger farms.
	I have already referred to TB, now very prevalent in cattle in the south and south-west of England and in all Welsh border counties. A decision will soon have to be taken about eradicating badgers around the TB hotspots for cattle. Do we want to kill badgers or to go on killing cows, only to have the healthy remaining stock reinfected? The present policy is costing the country many millions as well as disrupting production and breeding. Will the Government also investigate whether rats can act as TB transmitters; for example, between badgers and the cattle themselves?
	I end by asking a cautionary question. Are we as fully prepared as we can be for Asian bird flu? It is creeping nearer to us all the time. It raises issues of possible vaccination, which could turn out to be important for animal health much more widely across the board.

The Duke of Montrose: My Lords, I declare an interest as the owner of a large number of what are regarded as TSE-susceptible animals and as a participant in the voluntary scrapie eradication programme.
	There seems to be a long history to this debate. Fortunately, the situation is not as fraught as it was when we debated the original 2002 regulations, when we were all very conscious of the dangers, not just from BSE but from foot and mouth disease, and the Government had an obligation to implement the European TSE directive in the absence of an updated animal health Bill. We can all be grateful that we are not faced with a similar situation just now.
	However, there seems to be a curious similarity between this measure and the former one; in spite of the extensive effort by the Government to include more than 13,000 organisations in the consultation exercise, only 13 responded. That is an interesting reflection of what happened last time. Either the whole thing is far too complicated for most people to get their head around or the Government have got everything absolutely right.
	There are still areas where we would be grateful for some elucidation. Noble Lords may remember that when the House was discussing the scrapie provisions in the Animal Health Bill, I moved an amendment seeking to restrict the compulsory slaughter of sheep in the scrapie eradication programme to those regarded as most susceptible of the five deemed categories. This was on account of evidence that among hill breeds, in particular the Scottish Blackface, only nine per cent qualified for the "most resistant" variety. The purpose of the amendment was to try to ensure that, as science progressed, we would still have the chance to review the next steps that the Government might propose, with the hope that, at the same time, we would begin to understand the particular attributes attached to the different groups and be able to ensure that, by breeding, the essential breed characteristics could be maintained.
	We now have a chance, after four years, to revisit this topic, but the approach taken in the order appears to be based upon exactly the same scientific basis. I have received information that a ram in a Welsh mountain breed, with the highest category of scrapie resistance, was proving very unsatisfactory in terms of his progeny's survivability on the Welsh mountains. Tonight the noble Countess, Lady Mar, has suggested that various strains of scrapie do not obey the same rules as those adopted by the Government. Some of the animals classed as most susceptible may be those that can provide resistance. Perhaps there is a case here—though it would not be a subject for tonight—for the Government to retain a pool of genetic material from those that we are culling. I would be most interested to hear the Minister's response on these issues.
	We should still congratulate the Government on the UK's achievement of this massive reduction in the incidence of BSE. The dream that we will eliminate it is still there. The fact that two months ago they were able to end the Over Thirty Months Scheme in relation to slaughter—and I take it that the noble Baroness, Lady Howarth, was merely referring to the Over Thirty Months Scheme in relation to inspection, which is still in place—will mean huge savings and that we are operating the same controls as the rest of Europe. These controls ensure that, as far as possible, there is no risk to consumers. That essential fact must be maintained. At the same time, I hope the Government will continue to address the finer details of rules and regulations to see whether further savings in cost and red tape can be made.
	I recently received a communication from the Scottish Association of Meat Wholesalers, one of those bodies that replied to the Government's consultation, and that paid particular attention to the EU TSE road map, which allows for future developments in our control and elimination of this disease. It raises the point that a possibility for alleviating cost lies in the fact that the present classification of specified risk material includes the whole intestine, whereas BSE has only been isolated in the distal ileum. It was found that if the SRM rules were directed only at this part of the intestine, it would save the European industry £77 million each year.
	Can the Minister tell the House how much research the Government are aware of as being carried out in this country? This is important if we wish to see the best progress within the EU road map?

Lord Greaves: My Lords, following the noble Baroness, Lady Byford, and other noble Lords, I thank the noble Countess, Lady Mar, for initiating this debate and laying this Motion to annul, which allows us to have this discussion this evening. This is a complex and difficult issue for lay people to get their minds around; nevertheless, it is a very important one. That has been indicated by the way, as the noble Duke said, it keeps coming back to be debated in this House.
	This is a calmer and less hectic occasion than the last time the noble Countess sought to annul a regulation. That took place during the ping-pong on the Animal Health Bill, when emotions were roused and the noble Countess was roundly accused of all sorts of things, maligned and, at one stage, accused of undermining the constitution of the very country by what she was trying to do. The country survived her attempts to do that, as has the noble Countess, and we are here to discuss it again.
	Before I turn to some of the issues raised, I want to thank and applaud the Government for some of the more positive aspects of these regulations. In its 22nd report of the current Session—it does beaver away—the Merits of Statutory Instruments Committee said that the regulations,
	"effect a welcome consolidation of a number of instruments dealing with controls to eradicate transmissible spongiform encephalopathies in cattle, sheep and goats".
	The consolidating aspect of these regulations is to be welcomed, as is what is described in one of the supporting memoranda in our briefing papers as an "innovative" approach by the Government in setting them out clearly and in a sensible way, which is easier to amend in future, and in writing them in plain English. I am not sure that everyone who reads them will understand them immediately; nevertheless, I believe that that has happened. It is interesting that, in using plain English in a sensible presentational layout, Defra is commended as being innovative. Perhaps it should lend some of its staff to other departments. At the moment, I am dealing with the Electoral Administration Bill, which is an absolute minefield of non-plain English and non-sensible layout.
	Also, as I understand it, these regulations have been condensed into 42 pages instead of the 221 pages of the 2002 regulations. That is surely not only a step forward but an indication to civil servants everywhere who draft these things that it is possible to say things more concisely without saying less. These things are to be welcomed, and they are not trivial because nowadays much legislation is a minefield of gobbledygook.
	When the House discussed the 2002 regulations, my noble friend Lord Livsey of Talgarth moved an amendment to the noble Countess's Motion and then the Minister, the noble Lord, Lord Whitty, moved an amendment to her Motion. It all got incredibly complicated and, apparently, constitutionally difficult. My noble friend would have liked to be here this evening but, unfortunately, he has been suffering from bronchitis and he is not quite as resilient as the noble Baroness, Lady Byford. The noble Baroness may be of a more resistant genotype than my noble friend; he apologises for not being here.
	I shall give the gist of what my noble friend said four years ago. First, he made a general complaint that, once again, this was making law by subordinate legislation in complex areas that would benefit from a more detailed approach. If we could subject a statutory instrument of this kind to a Grand Committee-type afternoon's discussion, that would be beneficial to everyone. Again—this is a general point—if we are reforming the procedure of the House, we have to find ways in which complex and difficult issues such as this can be better debated, rather than through a Motion like this on the Floor of the House. So I repeat the comments that my noble friend made four years ago.
	My noble friend also said—this has been echoed by a number of speakers this evening—that these regulations are rather over the top and gold-plated. In particular, I echo the comments of the noble Lord, Lord Hylton, about the powers of the inspectors. That is precisely the kind of thing that we should be able to scrutinise better and to which we should be able to persuade the Government to make changes, which is very difficult.
	My noble friend's amendment referred specifically to appeals, on which the position is better now than it was four years ago. I remember the ping-pong on appeals that occurred during the passage of the Animal Health Bill. The noble Baroness, Lady Byford, and I managed to get some small improvements to the Bill at the bitter end of the ping-pong, and I think that there may be a better recognition of that kind of thing in these regulations.
	The final part of my noble friend's amendment dealt with what he referred to as,
	"the never-ending march of technology".
	A number of speakers have made that point this evening. Four years ago, the House passed a resolution, with the support of the Government, which called upon Her Majesty's Government,
	"to keep the regulations under review in the light of scientific and technological developments relating to TSE".—[Official Report, 15/5/02, cols. 382-83.]
	Underlying what a lot of people have said this evening is a belief that the Government have not really been doing that. Perhaps the Minister could tell us what changes have been made to the regulations and how they differ from the 2002 regulations in response to the Motion that the House agreed to at the time. What have the Government been doing to keep up with the never-ending march of technology and, in particular, to respond to the changes in science that have been taking place?
	I listened to the noble Countess, Lady Mar, in awe. The House is very—what is the word I am looking for? I am trying to compliment her, but I cannot think of the word. We really benefit a great deal from having her here to ask these questions. I do not know how much of what she says is right and how much is wrong; it is very difficult for a layperson to know such things. However, I know that she is asking a lot of the right questions, which I think deserve an answer.
	As far as TSE in sheep is concerned—and the whole business of genotypes, more susceptible strains and less susceptible strains—I think that we are back to the questions that concerned many of us a great deal when we were discussing Part 2, if I remember rightly, of the Animal Health Bill. It is all very well breeding out certain genotypes in order to eliminate scrapie, if that can happen; it may be that it cannot happen and that new forms of scrapie will come that, because the other forms have been bred out, attack the other kinds of sheep. However, the real danger, which is quite clear to us all, is that in breeding out those genotypes you may also be breeding out the desirable characteristics of those genotypes, which have evolved over hundreds and thousands of years and which in future may not be there in response to a wholly different kind of attack on the sheep flock. That has been the concern about the Government's approach and, frankly, that concern remains. However, that is a more general thing, which does not necessarily affect these regulations immediately.
	On the top side, the noble Baroness, Lady Howarth, explained how huge progress, in my view, has been made in tackling BSE. I understand the points that she made, but we cannot avoid the fact that in 1992 there were 37,000 cases of BSE in this country, whereas now the number is down not quite to single figures but to double figures each year. It is 20 years since BSE was diagnosed, discovered, invented or whatever happened then. I believe that a good enough case has been made for the connection between BSE and Creutzfeldt-Jakob disease in human beings for us to take the action that we are taking. Even if the two have nothing to do with each other, eliminating BSE in cattle is worth while in itself. I believe that progress has been made in that area. We all look forward to the lifting of the restrictions on the slaughtering and sale of cattle, to which the noble Baroness referred.
	I welcome the regulations with two cheers, I think, in so far as I fully understand them. In particular, I welcome on behalf of these Benches the questions that the noble Countess raised and I very much look forward to hearing the Government's response.

Lord Bach: My Lords, I join in the thanks to the noble Countess for introducing this debate by way of a Motion to Annul. I am staggered by the expertise that there is—not, of course, just from the noble Countess, but from around the House—on what is, as the noble Lord, Lord Greaves, said, a very complex matter.
	Hearing about battles that were fought four years ago, I feel like a newcomer to a reunion party that noble Lords are holding tonight. I was the only person who was not part of those or even present—though I see I did vote on that occasion as I have looked in Hansard. I have not read every word of the debate as it went on for nearly three hours, if Hansard is correct.
	We recognise that TSEs are a public health issue and that variant Creutzfeldt-Jakob Disease is a truly terrible disease. I know that noble Lords would like, first of all, to pay tribute to the victims of the human variety and their families. BSE and scrapie are also, of course, very important animal health issues.
	These regulations revoke the TSE (England) Regulations 2002. They provide the necessary powers to administer and enforce the directly applicable requirements of the European Union Regulation 999/2001 which lays down the rules for the prevention, detection and eradication of TSEs.
	I hope that noble Lords will forgive me if I remind the House why we need these regulations. The EU regulation sets out the objectives for TSE monitoring, control and eradication. However, it does not always say how these objectives should be delivered or set out what should be done if individuals do not co-operate. That is what our national legislation does. The 2006 TSE regulations set out in detail how the requirements of the EU regulation will be delivered and provide the necessary powers to enforce them.
	I am grateful to the noble Lord, Lord Greaves, for referring to the Merits Committee, because if he had not I was going to do so. In their consideration of the regulations, committee members reported that the regulations,
	"effect a welcome consolidation of a number of instruments dealing with controls to eradicate TSEs",
	and were glad to hear of our claims that these regulations were written in clearer and more understandable English than some other regulations. The new regulations are much simpler and clearer than those they replace. Noble Lords will have noticed that they are also half the length.
	The new structure of the regulations divides them into common provisions and schedules covering the main areas of control for TSEs. This structure makes the regulations much easier to use and understand. They are largely a consolidation and updating of the existing provisions in this area. They are both reasonable and proportionate and are not gold-plated. However, they do introduce a number of limited changes and I have been asked by the House to deal with one or two of those.
	A common appeals procedure has been introduced, replacing the various appeals procedure that existed under the 2002 regulations. This was an issue which the noble Countess raised last time and it was of general interest to the House.
	Schedule 3 of the regulations includes a new table compensation system for cattle killed under BSE control and eradication measures. This table is in line with that introduced by the Cattle Compensation Order (England) 2006 and brings BSE compensation into line with Defra compensation arrangements for TB, brucellosis and EBL in cattle. Changes have also been made to the compensation rates for female sheep or goats and lambs or kids in Schedule 4, following a consultation in autumn 2005.
	The regulations also slightly amend the requirements for testing cattle aged over 30 months intended for human consumption. These requirements were originally introduced by the regulations of last year and are included in Schedule 2 of these regulations.
	A robust system of testing was set down as a prerequisite by the FSA before cattle aged over 30 months could enter the food chain. I was grateful for what the noble Baroness, Lady Howarth, said about that. Industry was consulted widely before the introduction of the controls. The evidence indicates that the controls are not discouraging abattoirs entering this market.
	The introduction of the OTM testing regime has led to a return of older beef to the food chain and is a very welcome boost in difficult times to the food industry and beef farmers. Farmers are generally receiving prices from the market that are well in excess of previous Over Thirty Months Scheme rates for their older cattle. It was encouraging too to hear what the noble Baroness, Lady Howarth, said about consumer attitudes to BSE.
	As I said previously, these provisions simply provide the powers and controls that are necessary to ensure that the directly applicable European legislation is enforced properly. A concern was raised on the previous occasion—four years ago—that the regulations gave inspectors the power to kill any TSE-susceptible animals. In revising the regulations, we have given regard to these concerns. The schedules clearly identify where the provisions apply to bovines, sheep or goats respectively.
	I turn to some of the questions that were raised. Some of the questions were detailed, quite understandably so, and I shall write a general letter to the noble Countess with answers to those questions which I do not answer in the next few minutes.
	A number of noble Lords, including the noble Countess, the noble Baroness, Lady Byford, and the noble Lords, Lord Hylton and Lord Greaves, referred to the qualifications of inspectors. Regulations are enforced by these inspectors, who are either from the State Veterinary Service—they are of course qualified veterinary surgeons—or the Meat Hygiene Service, which oversees abattoirs. They are either vets themselves or qualified meat technicians.
	I turn to powers. I know that the noble Baroness, Lady Byford, is very interested in this topic. We have met it in various Bills that we have debated at the Dispatch Box in this Session. I was referred in the course of debate to Rule 17(1) relating to powers of entry. This rule represents no change from previous regulations. The rule states that an inspector shall, on producing a document which shows his authority, have a right at all reasonable hours to enter any premises. These premises will include domestic premises provided that they are used for a purpose in connection with these regulations. If the domestic premises are outside the scope of these regulations, the inspector would be acting ultra vires unless he or she had obtained a warrant before entering.
	It is a strong power—I do not want to deny that. No warrant would be required if, for example, the office of the farm—if we are talking about a farm—was in the dwelling house. If it was not found there and it was not reasonable to expect that it might be found there, the inspector would be acting outside his powers. The powers are quite clearly laid down in Rule 17. It is an example of the English used being more understandable.

Lord Bach: My Lords, I am advised that they will. So I have dealt with inspectors as I intended.
	The EU regulation sets out the scope for TSE control and eradication action. Where it is necessary to kill animals for control purposes, the EU regulation specifies which animals must be killed. Our national regulations give us the power only to deliver these requirements. The detailed provisions in the schedules set out when the powers will be executed, but that does not mean that an inspector can require animals to be killed without good reason. Actions must be in accordance with the EU regulation and these regulations. Thus an inspector may exercise their powers only in the circumstances set out in the schedules and in the EU regulation. It is worth noting that the control measures set out in the EU regulation are currently being discussed within the context of the EU Commission's strategy document, The TSE Roadmap.
	Changes to controls are being considered in several areas to reflect the encouraging reduction in BSE cases across Europe. We are actively involved in this process. It supports the proposal that, in a case in which scrapie has been confirmed and BSE has been ruled out, it should not be necessary to cull the affected flock. The UK supports the proposed tolerance for acceptable trace residues of fishmeal in ruminant feed. This will alleviate significant problems which requirements for strictly dedicated production cause until the political issues of lifting the ban on fishmeal in ruminant feed are resolved in the European Parliament.
	The noble Countess, Lady Mar, is a distinguished contributor on these issues, but there is a difference of opinion about the origins of BSE. Indeed, it is accepted that the origins may never be known. But I draw the House's attention to the independent review carried out last year by Professor William Hill, who confirmed that the elimination of food-borne sources was a key to the eradication of BSE. He recommended risk-based controls, and that monitoring should be maintained on animals and feed.
	I shall return to answering some of the questions that have been asked today. The noble Countess mentioned what I believe is called the "one before and two after" rule. This is an EU rule, but I can announce that the Veterinary Laboratories Agency is carrying out a new risk assessment of this control. I hope that will give the House some satisfaction.
	The noble Countess expressed concern about goats. The EU regulation sets out the control measures that must be taken when scrapie is reported, and the provisions of the domestic regulations provide inspectors with powers to enforce them. We believe that the EU controls are disproportionate for cases of scrapie in goat herds that are dairy flocks, where animals are not sent for breeding. In such cases, we have applied controls pragmatically, restricting and monitoring affected herds rather than culling them. Other member states are carrying out similar actions in herds with confirmed cases of scrapie.
	The noble Countess, Lady Mar, and the noble Baroness, Lady Byford, talked about access for the Edinburgh scientists. I will answer that in the letter that I will write. The noble Baroness mentioned controls based on sound science. Controls are based on the best available science, and this is supported by the Government's independent experts—the Spongiform Encephalopathy Advisory Committee.
	The noble Baroness also asked why there was no differentiation of penalties in these regulations. Our answer is that the legislation does not impose the penalties on individuals; the courts do. The penalty provisions set only maxima; that is all they can do. The courts have—they must have—a wide discretion when dealing with an individual case. So there is no inevitable lack of proportionality in any particular case.

Motion, by leave, withdrawn.
	House adjourned at six minutes before nine o'clock.
	Tuesday, 7 March 2006.